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A judgment that takes a stand for harassed women

The constitutional courts in the country are charged with the duty of upholding the rule of law and protecting the fundamental rights of citizens.

A judgment that takes a stand for harassed women

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Indira Jaising

The constitutional courts in the country are charged with the duty of upholding the rule of law and protecting the fundamental rights of citizens. To perform this function without fear or favour, they themselves must be beyond reproach. In order to inspire the confidence of the people, they must, at the very least, have within them an internal self-cleansing mechanism to entertain complaints from those who use the courts or work within the system. 

The Supreme Court in the in-house procedure to entertain complaints created such a mechanism. When the Additional District Judge, Gwalior, was sexually harassed by a sitting High Court Judge, she naturally turned to the Chief Justice of the High Court seeking relief. Not able to get a hearing from the Chief Justice, she resigned. “When I found that I could not fight the system from within, I decide to resign and seek justice,” she said.
 
She then invoked the in-house procedure by lodging a complaint against the Judge with the Chief Justice of India, who, in turn, requested the Chief Justice of the High Court to send his comments.
 
Her complaint points to a deep-rooted problem in society. She says that while we talk of gender justice on public platforms, in public employment there is very little respect for women as professionals, and there is a glass ceiling which prevents them from moving higher. In her case, this glass ceiling came in the form of sexual harassment, compelling her to resign. She wondered “what use is education, if it does not teach you to be respectful of women”.
 
Being left with no option, she turned to the Supreme Court for the vindication of her self-respect and for the restoration of her position as a judge. Her resignation, she said, was a constructive termination and she should be reinstated. In a historic judgment on December 18, the last working day in this year of the court, the Supreme Court held that she had a legal right to invoke the in-house procedure for an inquiry against the judge.
 
Establishing for the first time, a legal remedy for misconduct against a sitting judge of the High Court, the court requested the Chief Justice of India, in his capacity as the first among equals, to set up an appropriate committee to inquire into her complaint of sexual harassment. Recognising the dominant position and the supervisory role of the judge, the court requested the Chief Justice of the High Court to withdraw his supervisory functions while the inquiry was in progress to ensure a fair probe. The court should also have directed that his judicial functions be withdrawn. There is something incongruous and embarrassing about a judge who is charged with sexual harassment under investigation sitting in judgment over others. The judgment will not only enable women to complain of sexual harassment, but also enable all persons, including litigants, to ventilate legitimate grievances against judges.
 
Any institution that calls itself an “integrity institution” and is charged with the duty of maintaining the rule of law, must have a code of conduct and a self-cleansing mechanism. This will maintain the legitimacy of the institution in the eyes of the public. The court rejected the argument that any inquiry into the conduct of the judge would interfere with the independence of the judiciary.
 
For too long this argument has been used to deny any form of accountability by judges. It is in this context that the judgment achieves a measure of judicial accountability and provides a legal remedy against erring judges, without having to invoke the impeachment procedure at the outset, or file a criminal complaint. The judiciary must recognise that it is going through a crisis of confidence. Unless it learns to put its own house in order, it will invite executive interference.
 
The allegation of sexual harassment by a district woman judge against a High Court judge exposes the sexism rampant in the judicial system. The hierarchy that exists among district and High Court judges prevents any form of equality in interactions. Women district judges complain that often, especially at farewell functions and such-like parties, they are made to dress in a ‘uniform manner’to be identified as hostesses, forgetting that they are judges. Such is the sex stereotyping from which the judiciary has not been able to get away. It is tragic that those charged with the duty of upholding constitutional values are themselves accused of violating those values. This is the third instance of this kind in less than a year—the two former instances being of interns complaining against retired Supreme Court judges. They once again remind us that harassment is about unequal balance of power at the workplace. It is not surprising that women are conspicuous by their absence from the courts as lawyers and judges. If gender justice is to become a reality, this imbalance must be corrected. The Additional District Judge might well become the Anita Hill of India, empowering others to complain of such indignities. No amount of injunctions by courts will prevent women from speaking up.
 
— The writer is a former Additional Solicitor General of India and founder of  Lawyers Collective

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